Privacy Case Note - The law relating to the use of McKenzie friends and agents in proceedings and implied non-compliance with the PPIP Act [2015] NSWCATAD 112

The issue in dispute concerned the respondent’s collection, use and disclosure of the complainant’s personal information in relation to his appearance as a McKenzie friend (usually a lay person providing assistance to an unrepresented litigant) in proceedings brought by another party. Specifically the complainant is alleging a breach of the collection principle in section 13 of the PPIP Act and the disclosure principle in section 18 of the PPIP Act.

The respondent relied on section 25 of the PPIP Act as permitting non-compliance, arguing the Tribunal’s consideration of issues relevant to granting leave for a person to act as a McKenzie friend or agent will necessarily involve consideration of information that is personal to the individual.

The Tribunal found that the law relating to the use of McKenzie friends and agents in proceedings necessarily implies that non-compliance with the privacy legislation will occur where the Tribunal is determining whether to refuse to permit a person to act as a McKenzie friend or agent.

The Tribunal dismissed the application for review for want of jurisdiction.

Legislative background

Section 13 (IPP 6) provides that an agency must provide a person with details regarding the personal information they are storing, why they are storing it and what rights the person has to access that information.

Section 18 (IPP11) provides that an agency can only disclose a person’s personal information in limited circumstances if the person has consented or was told at the time the information was collected that it would be disclosed. An agency can also disclose a person’s information if it is for a directly related purpose and it can be reasonably assumed that the person would not object, if the person had been made aware that information of that kind is usually disclosed, or if the disclosure is necessary to prevent a serious and imminent threat to any person’s health and safety.

Section 25 of the PPIP Act provides that an agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18, or 19 if lawfully authorised or otherwise permitted not to comply with the relevant principle.

Factual background

The applicant had complained to the then Department of Attorney General and Justice (“DAGJ”) “on behalf of the Crown Solicitor” that his privacy had been breached by a CSO solicitor, “personally sanctioned by Ian Knight”, recording false, misleading and incomplete information about his appearance at the then Administrative Decisions Tribunal (“ADT”), using such information to compile and file a statement of evidence and submissions about him. The conduct related to an application made on behalf of NSW Treasury, in proceedings brought by Mr Vitas, that AQG, who has a lengthy Tribunal history as an unsuccessful applicant and appearing as agent for unsuccessful applicants, be restrained from appearing as agent for Mr Vitas in those proceedings against NSW Treasury (“the Vitas proceedings”).

By its privacy internal review dated 24 June 2013, DAGJ found that, although the Crown Solicitor and the CSO solicitor were employed by DAGJ, the Crown Solicitor was acting for NSW Treasury which was the relevant agency. AQG subsequently commenced proceedings against NSW Treasury in respect of the same conduct (“the NSW Treasury proceedings”).

On 17 September 2013, the Tribunal directed that submissions be filed on the issue of the correct agency. On 5 September 2014, the Tribunal listed the matter with the NSW Treasury proceedings, (which were later settled) and made further two additional jurisdictional arguments then raised by the CSO as the correct respondent.

The issues were:

The relevant privacy conduct was not subject to the PPIP Act because it affected the manner in which the ADT exercised its “judicial functions” (s 6, PPIP Act); and

The Tribunal rejected the respondent’s first argument that the judicial functions of Tribunal members “extend[ed] to determining the manner in which proceedings” are conducted, that is, by the filing of evidence and submissions in support of an application to restrain the applicant’s participation in the Vitas proceedings. The Tribunal held that, in this case, the conduct “does not involve any exercise by the ADT or its registry staff of the Tribunal’s judicial functions. Rather, what is involved is the preparation and filing of [the] statement and submissions in the ADT by the CSO on behalf of NSW Treasury…The conduct under review here is not that of the Tribunal or its officers” (at [34]).

As to the second argument, the Tribunal applied PN’s case noting that the disclosure of personal information was lawfully authorised or reasonably contemplated by the relevant legislation. The Tribunal also applied the Vice-Chancellor, University of New South Wales v Curtin case and noted to attract the exemption in section 25 of the PPIP Act (not required to comply with ss 9, 10, 13, 14, 15, 17, 18 or 19 if lawfully authorised or otherwise permitted), the information does not have to be provided at the direction of the Tribunal, but may be provided by a party of its own volition in the course of usual procedures.

As the AQG complained about breaches of ss 13 and 18, the Tribunal dismissed the application for want of jurisdiction.